Textualism and the Mishnah Berurah

Dr Haym Solovetichik, in his famous paper “Rupture and Reconstruction“, describes a difference between the the Mishnah Berurah and the Arukh haShulchan as follows:

This dual tradition of the intellectual and the mimetic, law as taught and law as practiced, which stretched back for centuries, begins to break down in the twilight years of the author of the Arukh ha-Shulhan, in the closing decades of the nineteenth century. The change is strikingly attested to in the famous code of the next generation, the Mishnah Berurah.6 This influential work reflects no such reflexive justification of established religious practice, which is not to say that it condemns received practice. Its author, the Hafetz Hayyim, was hardly a revolutionary. His instincts were conservative and strongly inclined him toward some post facto justification. The difference between his posture and that of his predecessor, the author of the Arukh ha-Shulhan, is that he surveys the entire literature and then shows that the practice is plausibly justifiable in terms of that literature. His interpretations, while not necessarily persuasive, always stay within the bounds of the reasonable. And the legal coordinates upon which the Mishnah Berurah plots the issue are the written literature and the written literature alone.7 With sufficient erudition and inclination, received practice can almost invariably be charted on these axes, but it is no longer inherently valid. It can stand on its own no more.

6 Israel Meir ha-Kohen, Mishnah Berurah. This six volume work, which has been photo-offset innumerable times, was initially published over the span of eleven years, 1896-1907, and appears contemporaneous with the Arukh ha-Shulhan. Bibliographically, this is correct; culturally, nothing could be farther from the truth. Though born only nine years apart, their temperaments and life experiences were such that they belong to different ages. The Arukh ha-Shulhan stands firmly in a traditional society, un-assaulted and undisturbed by secular movements, in which rabbinic Judaism still “moved easy in harness,” R. Israel Meir Ha-Kohen, better known as the Hafetz Hayyim, stood, throughout his long life (1838- 1933), in the forefront of the battle against Enlightenment and the growing forces of Socialism and Zionism in Eastern Europe. His response to the growing impact of modernity was not only general and attitudinal, as noted here and below, n. 20 sec. c, but also specific and substantive. When asked to rule on the permissibility of Torah instruction for women, he replied that, in the past, the traditional home had provided women with the requisite religious background; now, however, the home had lost its capacity for effective transmission, and text instruction was not only permissible, but necessary. What is remarkable is not that he perceived the erosion of the mimetic society, most observers by that time (1917-1918) did, but rather that he sensed at this early a date, the necessity of a textual substitute. (Likkutei Halakhot, Sotah 2 la [Pieterkow, 1918].) The remarks of the Hafetz Hayyim should be contrasted with the traditional stand both taken and described by the Arukh ha-Shulhan, Yoreh De’ah 246:19. One might take this as further evidence of the difference between these two halakhists set forth in the text and documented in n. 7. One should note, however, that this passage was written at a much later date than the Mishnah Berurah, at the close of World War I, when traditional Jewish society was clearly undergoing massive shock. (For simplicity’s sake, I described the Mishnah Berurah in the text as a “code,” as, in effect, it is. Strictly speaking, it is, of course, is a commentary to a code.)

7 Contrast the differing treatments of the Arukh ha-Shulhan and the Mishnah Berurah at Orah Hayyim 345:7, 539:15 (in the Arukh ha-Shulhan) 539:5 (in the Mishnah Berurah), 668:1, 560:1, 321:9 (Arukh ha-Shulhan) 321:12 (Mishnah Berurah). See also the revelatory remarks of the Arukh ha-Shulhan at 552:11. For an example of differing arguments, even when in basic agreement as to the final position, compare 202:15 (Arukh ha-Shulhan) with 272:6 (Mishnah Berurah). This generalization, like all others, will serve only to distort if pushed too far. The Mishnah Berurah, on occasion, attempts to justify common practice rather unpersuasively, as in the instance of eating fish on Sabbath, (319:4), cited above n. 3, and, de facto, ratifies the contemporary eruv (345:7). Nor did the Arukh ha-Shulhan defend every common practice; see, for example, Orah Hayyim 551:23. (S. Z. Leiman has pointed out to me the distinction between the Arukh ha-Shulhan and the Mishnah Berurah is well mirrored in their respective positions as to the need for requisite shiurim in the standard tallit katan, noted by Rabbi E. Y. Waldenburg in the recently published twentieth volume of his Tzitz Eliezer [Jerusalem, 1994], no. 8, a responsum that itself epitomizes the tension between the mimetic culture and the emerging textual one.)

R/Dr Haym Soloveitchik focused on the MB’s more textualist slant vsthe AhS giving weight to those positions that were accepted as common practice. Which was the paper’s thesis, the idea R/Dr Soloveitchik was using that particular comparison to illustrate. But I do not believe it’s the primary difference between them.

II

I would suggest this is not a difference in attitude toward halakhah, but an effect of a difference in function. The AhS was written by a community rabbi to present halakhah as it should practiced (halakhah lemaaseh). The MB was written by a tzadiq and a gaon as a survey of later shitos that weren’t available to most people trying to learn halakhah (halakhah velo lemaaseh). The author places no focus on rulings to be followed in practice. (See below, though, about what others later do with the work.)

I called my biur by the name MB since within it is explained (misbareir; c.f. “berurah“) the words of the SA, every law by its reasoning and origins in the gemara and posqim that it not be like a sealed book.
Also I will collect in it all the dinim, halakhos and biurim scattered among the books of the acharonim, meforshim of the SA who are known (like MA, PMG, Birkhei Yoseif, Maamar Mordekhai and many such.) There have been many of them since the Be’er Heitiv and they are not utilized in responsa because they are somewhat scattered in various places. All of these [opinions] are compiled here, and all is in a straightforward and easy language and in proper order, with Hashem’s help.

And the Beiur Halakhah:

Also, I appended on its side some necessary ideas titled under the name Biur Halakhah — and as the name, so it is. For in it I sometimes explained the words of halakhah which are brought in summary in the MB without proof, and here I show (be”h) its source looking in all of gemara and the posqim. Also in it are sometimes explains the words of the SA at length in places which need explanation.

First is that the SA by itself without learning the Tur is not comprehensible, because when he wrote the SA it was the BY’s intention that people should first learn the sources of the halokho in the Tur and the BY, so that he would understand the reasoning and logic of each shitta and the practical differences between each… Many times it happens that the SA combines in one s’if something that is only l’khat’hilla with another that is b’di’eved and l’iqquva, something that is d’orayso with something d’rabbonon, and there will be a difference if there is a safeq etc… But learning every din in the SA with its sources and reasons from the Tur and the SA is too great a task for most people nowadays… since in this way one medium siman may take several days and sometimes a few weeks…

The second reason… is that it is difficult to know the halokho l’ma’aseh because of the multiple disagreements brought by the acharonim… and even if he would want always to be mahmir in the matter, that is also not a safe way, because sometimes it will be a chumra that leads to a kula. I also see that from the time the B’er Heitev summarized the Taz and the Mogen Avrohom and others and responsa about 150 years have passed, and in the meantime there have been very many famous g’onim who have dealt with the matters, such as the Elya Rabba, the Matteh Y’hudah, and many others, and the Sha’arei T’shuva only brings a little bit of this in some places. In particular, the Pri M’godim, which is a great work and deals in each siman with new questions l’ma’aseh, and whose conclusions have been accepted is almost not quoted almost at all in the Sha’arei T’shuva… and similarly many many other famous g’onim whose views have been accepted after the Sha’arei T’shuva was printed, such as R. ‘Aqiva Eiger, Derekh haHayyim… So that now if a person wants to understand some halokho l’ma’aseh that is not fully discussed in the SA, he will have so search in many acharonim… Therefore I have strengthened myself with the grace of G-d to fix these matters. I have written an explanation to the SA that is sufficient in my opinion… and explained each din in the SA with its reasons and logic from the g’moro and posqim… and in each matter where there are disagreements among the posqim I have presented the conclusions of the acharonim (gathered from the BaH, the D’risha, the Elya Rabba, the G’Ro the P’ri M’godim…)

The author of the Mishnah Berurah is clear: the purpose of the book was not to provide his own ruling, but to survey the later posqim who have added complexity to the field so that someone looking to reach a decision knows who wrote on the matter.

Yes, the CC (or his son or other students who worked with him) often gave his own opinion, including our “ba’al nefesh yachmir“, but it is unclear to me he intended that opinion to be a pragmatic ruling rather than a theoretical statement. This would explain why the Mishnah Berurah’s rulings diverge from accepted practice so much more often than the Arukh haShulchan (a contemporary work from the same region). Halakhah lemaaseh, pragmatic rulings, need to take such precedent and continuity into account; discussions of textual theory do not.

As further evidence that the Mishnah Berurah was not intended to be a practical law guide, we have a lot of testimony that shows that its own author often followed the common Lithuanian practice over his own “ruling”. Despite the origin of wearing one’s tzitzis strings out being in the MB, the CC did not. His qiddush cup doesn’t hold as much wine as the MB would require. (It is still in the hands of the Zaks family and has been checked repeatedly.) He advocated for building city eiruvin for carrying on Shabbos despite BH 364 “ve’achar“. The Chafeitz Chaim did not say “Berikh Shemeih” when taking out the Torah. Etc…1

I am suggesting that the CC’s textualist and formal stance in the MB is simply because the MB was a book for studying texts. And he did not intend to deemphasize mimetic tradition (the flow of practice transmitted culturally) when it comes to deciding practice, as we see from his own practice.

However, the way the Mishnah Berurah was utilized shifted when the Chazon Ish in Israel and a number of American rashei yeshiva (such as R’ Aharon Kotler) promoted the idea of using the Mishnah Berurah as a poseiq acharon.

AH saw the MB; see 11:22; 12:4; 28:23; 62:4; 268:6; and other places where he mentions Mishnah Berurah by name. In 79:11 and 319:22 and elsewhere he disagrees with him by name and in innumerable places he disagrees with him without mentioning his name: for instance, in 55:20 he is writing against the Mishnah Berurah and similarly in 370:13 — this is obvious anyone who looks carefully. So it is a mitzvah to let people know that AH is not only a Sefer Halacha but also a response to the Mishnah Berurah.

Similarly R [Shmuel] Yaakov Weinberg (Ner Israel) considered the AhS the more authoritative. And minutes before my chupah (while waiting for the paper to burn to have ashes for my head), R’ Dovid Lifshitz asked if I had one for my new home, because it was closer to halakhah as my ancestors held. (RDL knew my family back in Suvalk.)

As for Rav Moshe Feinstein, his sons Rav Dovid and Rav Reuven Feinstein both testified that Rav Moshe gave priority to the AhS because R’ Yechiel Michl Epstein had a community, and therefore the more practiced poseiq of the two.

III

Three more methodological differences between the Mishnah Berurah and the Arukh haShulchan:

The AhS’s idea of understanding the halakhah is being able to analyze how the pesak evolved from gemara (and Yerushalmi) to Rif, Rambam, Rosh to the Tur, Beis Yoseif, Shulchan Aruch & Rama, and finally to the acharonim since. The MB is surveying halakhah in the acharonic period, and how to decide amongst them; he is more “lateral” than historical.

Fourth, the AhS is willing to leave the halakhah fuzzy, and often comes to a range of conclusions rather than one clear-cut pesaq. Or, he will pasken one way in one se’if, but in a slightly different case in a different se’if reopen the question: … but if you hold like…

Last, in 1998 I suggested that the MB, having been written by the Chafeitz Chaim, reflects an attitude where the line between halakhah and personal improvement is intentionally blurry. (Which would also be more textual than mimetic, but in a different way than R/Dr Soloveitchik discusses textualism. Shifting from common practice as needed for ideological reasons is just as non-mimetic as shifting from it because of formal legal arguments in a “clean room” study.

To a ba’al mussar (although the CC was not an adherent of the movement), halakhah can be viewed as the required baseline of a mussar regimen. Mitzvos exist to hone oneself, but someone who is serious about this task would try to harness them consciously toward that end, would commit to other practices toward that goal, etc… So, we can view “ba’al nefesh yachmir” as mussar advice, but that doesn’t stand entirely separate from pesaq.

Some attribute these differences on the presence of other authors. However, as can be seen from the title page, the Chafeitz Chaim calls the commentary his own. And of all our sages, the Chafetz Chaim is the one we would least associate with robbing credit through careless or imprecise speech! Whatever contributions students made were both as per their rebbe’s teachings and approved by the CC before publication. The content must entirely have been his ideas, even if they were as explained by someone else. I could believe some things were overlooked, but it stretches credibility to think it happened often enough to create a pattern. [↩]

Grandpa Berger was one of many witnesses. I also confirmed with the local Zakses. R’ Moshe zt”l, in his pesaq against the practice, reports that R’ Mendel Zaks told him the same thing. (Although to be honest, RMF said the shift of the MB to a sefer pesaq was caused by R’ Elchanan Wasserman zt”l Hy”d. I ignored this data point because I think it was R’ Aharon’s efforts that indeed “took hold” among the masses.)

In Rabbi Menachem Mendel Poliakov’s ‘Minhagei Lita’ – I think I remember reading that “even in Radun – they didn’t wear tzitzith out”
Also I couldn’t see tziztith on the recently publicized video of the Agudath Yisrael convention which even showed the Chafetz Chaim. As I understand the ‘recomendations’ of the MB and AH – tzitzis should have been visible and proudly openly displayed.

Sense or not, there are too many witnesses to be unsure about this. And Litvaks would certainly note and remember a rav who wore his tzitzis out; they generally considered it yuhara to do so, following the Mahari Bruna (15th cent Germany) #96.

I also don’t understand the shift in tone between 8:25 and 8:26 (link). In the first s”q the MB records a machloqes, and says that even lechumerah, you could manage with just leaving them out after the berakhah for enough time to walk 4 amos. Then the second s”q (#26) explicitly rejects that. I am open to suggestions.

The Mishnah Berurah could be talking about when you have the Beged of tzitzis over your shirt to leave the strings out and not to tuck them in. Not that when you have the beged under the shirt you need the tzitzis out. I have hear some read the M’B this way.It does not make so much sense to me (especially because this does not fit into the Mogen Avraham who the M’B quotes as his source on the bottom) and I wear my tzitzis out but this is a possible explanation that some give.

I hear, but again, look what Seif the M’B is commenting on in the S’A (its the one that the Ikar Mitzvah of Tallis Koton is to be on top of the clothes)this could seem to explain the Chofetz Chaim’s change in tone

Regarding giving precedence to the Aruch HaShulchan over the MB, my Rosh Yeshiva, Reb Henoch Leibowitz ztz”l, despite being a great-great nephew of the Chofetz Chaim, also held that the Aruch HaShulchan is to be preferred for Psak Halacha.

I would like to point out a couple of things.
1. Many places in the אגרות ומאמרים of the CC he writes to look in the MB for Psak Halacha. This is also pointed out time and again in מאיר עיני ישראל, if you want sources I can get them. 2. You can also notice that the only times that the Aruch Hashulchan quotes the MB is in the first and 3rd volume of the CC, this is because he did not have access to the others (meaning that the majority of the MB came out after the AH or the same time). 3. A small but incomplete list of where the CC goes with the Minhag and tries to defend it סי’ תקפ”ה מ”ב ס”ק ב, ה, ז, סימן יד ד”ה לא יברך. סימן כז ד”ה והרי נהוג withe many many more. You can also find many times that the AH argues on the minhag. 4. What is crystal clear is that the CC had access to many many more sefarim then the AH had (in fact the only time the AH quotes the Magen Giborim is in the name of the MB, in the first volume.

Shlomo: I am not so much presenting a theory about what the MB as simply reporting how the title page and introduction of the work describes itself. The MB says it’s a survey of comparatively more recent halachic sources for the sake of the poseiq to better reach a conclusion. I think it’s safe to take it as its word.

If you see problems with that self-description, than you have questions, but you cannot disprove that which the book itself explicitly says.

That said, it’s unsafe to talk in absolutes…. While the intent of the book is to teach halachic theory, he does say it’s to help the poseiq. The two topics — lomdus and halakhah lemaaseh — are not entirely disjoint.

I think this addresses your first three items. However, as for #4… What is clear is that the author of a survey collected sources, whereas a typical Litvisher poseiq wouldn’t necessarily bother. We often find the Igeros Moshe say “ein li seifer zeh tachas yadi — I don’t have this book”, the book the questioner mentions, “under my hand”. And yet Rav Moshe’s son was at Beigelesen’s bookstore 5 days a week for most of the decades in question and borrowing a copy was trivial. Litvisher norms in pesaq tend to be more about the few bigger name sources and reason, not breadth.

You will forgive me for I do not understand your answer. I showed three points. 1. That the CC himself in the MB many times goes along with the Minhag. 2. The Aruch Hashulchan only predates the MB for the 1st and 3rd volumes.
My third point regarding the fact that the CC used the MB himself and also intended its use for the many. In Prof. Benjamin Brown article Soft stringency (which I cant claim to agree with at all see last PGH here) he writes on page 7 that it was the CC’s opinion that this is the Halacha and that is what the Haskamos on the sefer MB say and this is what his son wrote. Regarding the vague terminology that he uses in his introduction, the only way to prove anything would be to compare it to the Shach or the Bais Yosef’s introduction’s and see if they wrote anything differently or not. There is much anecdotal testimony that he held like the MB (see Meir Einey Yisrael page 18 and 139 and many more).
My fourth point that the CC had many more sefarim. I do not understand what LItvish means; the Shach quotes an enormous amount of Sefarim, the GR”A also the Magen Giborim, Artzos Hachaim, and many and most achronim also “survey collected sources”; and if these are not Litvish then who is. Given that some are certainly more important that others, but I think all would agree that having access to more RIshonim and original כתב יד would help you come to the more correct conclusion (you find many times the CC writes in the MB ספר הנדפס מחדש כגון ריטב”א על פסחים וכן מאירי וכן אשכול וכו).
Regarding how Prof. Benjamin Brown understands the MB’s methodology as soft stringent because he uses stringent terms more often and he proves this with a table in the beginning (this is his whole basis for his article). This in essence seems flawed because the MB is about double the size of the Aruch Hashulchan in words and many fold than the other Achronim, that being the case of course you will find him using those terms more often. The only real way to know would be to go through every single דין and to compare it to the Aruch Hashulchan and see who is stricter (which I am almost done doing now BTW).

1- Yes, the MB at times does choose minhag. As I said, we cannot speak in absolutes. Those are exceptions to his method; or perhaps cases where minhag buttresses his point rather than creates it. I didn’t do a complete analysis. But in any case, the instances where he does follow minhag doesn’t create a general tendency to his work.

2- There was no assertion about which came first. Interesting historical point about which volumes of the MB he quotes, for which I thank you. But not really something I thought required an “answer”. BTW, RYME published CM first, so the fact that the two overlapped when woring on OC still places much of the AhS earlier.

3- You are arguing with the MB itself. I am quoting the original title page and introduction of the book. They can’t be wrong. The MB is a survey intended for study, it tells you that’s what it is for.

3b- There are no intimation that the AhS would be more lenient. Many times minhag (in the sense of how the din is followed, not of customs) goes way beyond what halakhah mandates.

4- The CC tells you the MB is a survey, so of course it cites many sefarim. His point was to give a precise of what his many sefarim say. Whether you agree with how his contemporaties (Be’er Yitzchaq or Achiezer) pasqened or not.

But as I said, my main point is #3. I do not know how one can argue about the intended role of the MB when the book tells you its intended role.

2-RYME published CM first on SH”A, but the CC published MCHY and CC before the CM was published, but I dont see any relevance between CM and OCH.
3- I’m not accustomed to do research for other people. However I looked up the PMG and the Taz’s introduction on their title page (whom the consensus is that they both paskened completely and are not just a compendium of points). They both write not to be סומך on them and that their sefer is just a reference guide for “points”. The MB clearly understood both of these Sefarim to Pasken. I think what Prof Brown wrote regarding this would make a lot more sense; that the CC was an extremely humble person and left things vague on purpose (also see the bio from his son, on why the CC kept the Beer Heitiv in his sefer because he was nervous to take all the credit for himself).
BTW how he conducted himself (tzitzis out or not and many more examples), his son discuss this. He writes that my father had a Mesora on many things and most of all his Mesora was to follow the GRA (for the average person who does not have this Mesora, he should follow the MB).
4. What is the Litvish Mehalch exactly?

One more point regarding 3.
In the letters of the CC (I can find which one if you want). He expresses gratitude to Reb Yakov Iskolsky for selling 1000 sets of MB in America. It would be a bit interesting if in נדחי ישראל the CC writes that most (if not all 99 percent) of americans are עמי הארץ and would then send a sefer for them to not know the bottom line Din. We might just have to conclude that the CC was a humble man and wrote accordingly.